Clervrain v. Marshall (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MANETIRONY CLERVRAIN, )

Reg. No. 96396-004, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:20-CV-1024-WHA-CSC

) (WO)

STEVEN T. MARSHALL, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Manetirony Clervrain filed this complaint alleging, among things, his mistreatment

by persons at the Moore Detention Facility in Oklahoma. Doc. # 1. Clervrain’s complaint,

which comprises an amalgam of unrelated statements and allegations, names Alabama

Attorney General Steven T. Marshall as Defendant. Id. at 1. However, Clervrain’s

allegations support no plausible claim against Marshall. With his complaint, Clervrain

moves for leave to proceed in forma pauperis. Doc. # 2.

II. DISCUSSION

Under 28 U.S.C. § 1915(g), commonly called the “three strikes rule,” a prisoner

may not bring a civil action in forma pauperis if he “has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted, unless the prisoner is under imminent

danger of serious physical injury.”1

Clervrain is a prolific filer of federal civil actions deemed frivolous. Court records

establish that Clervrain, while incarcerated or detained, has on at least three prior occasions

had civil actions and/or appeals dismissed as frivolous, as malicious, for failure to state a

claim, and/or for asserting claims against defendants immune from suit under 28 U.S.C.

§ 1915.2 The cases upon which this court relies in finding a § 1915(g) violation with

Clervrain’s instant complaint are: Clervrain v. Revell, No. 18-3166-SAC, 2018 WL

5281366, at *1 (D. Kan. Oct. 24, 2018); Clervrain v. Brownback, No. 5:19-CV-3040-SAC,

ECF No. 5 (D. Kan. order filed May 8, 2019) (collecting cases); Clervrain v. Holder, No.

1:19-CV-890-UNA, ECF No. 51 (D.D.C. order filed Jan. 28, 2020); and Clervrain v.

Samuel, Jr., No. 1:19-CV-468, ECF No. 48 (D.D.C. order filed Mar. 13, 2019) (collecting

cases).

Because Clervrain has had at least three prior qualifying dismissals, he may not

proceed in forma pauperis here unless he demonstrates he is “under imminent danger of

1 Title 28, § 1915(e) requires the federal courts to review complaints filed by persons who are proceeding

in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim

on which relief may be granted, or seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2)(B). “[A] complaint . . . is frivolous where it lacks an arguable basis either in

law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hawkins v. Coleman Hall, C.C.F., 2011

WL 5970977, at *2 (3d Cir. 2011) (“An appeal is frivolous when it lacks an arguable basis either in law or

fact.”) (citing Neitzke, 490 U.S. at 325). Pursuant to § 1915(e)(2)(B), courts are “authorized to dismiss a

claim as frivolous where ‘it is based on an indisputable meritless legal theory or where the factual

contentions are clearly baseless.’” O’Neal v. Remus, 2010 WL 1463011, at *1 (E.D. Mich. 2010) (quoting

Price v. Heyrman, 2007 WL 188971, at *1 (E.D. Wis. 2007) (citing Neitzke, 490 U.S. at 327)).

2 This court may take judicial notice of its own records and the records of other federal courts. Nguyen v.

United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009); United States v. Rey, 811 F.2d 1453, 1457 n.5

(11th Cir. 1987); United States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999).

serious physical injury.” 28 U.S.C. § 1915(g). In determining whether a plaintiff satisfies

this burden, “the issue is whether his complaint, as a whole, alleges imminent danger of

serious physical injury.” Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). “A

plaintiff must provide the court with specific allegations of present imminent danger

indicating that a serious physical injury will result if his claims are not addressed.”

Abdullah v. Migoya, 955 F. Supp.2d 1300, 1307 (S.D. Fla. 2013)) (emphasis added); May

v. Myers, 2014 WL 3428930, at *2 (S.D. Ala. 2014) (holding that, to meet the exception to

application of § 1915(g)’s three strikes bar, the facts in the complaint must show that the

plaintiff “was under ‘imminent danger of serious physical injury’ at the time he filed this

action.”).

Clervrain makes no claim that he is in imminent danger of serious physical injury.

After careful review, and construing all allegations in favor of Clervrain, the court finds

Clervrain may not avoid the bar of § 1915(g), because he does not provide the court with

specific allegations of present imminent danger indicating that a serious physical injury

will result if his complaint is not addressed. See Medberry v. Butler, 185 F.3d 1189, 1193

(11th Cir. 1999) (holding that a prisoner who has filed three or more frivolous lawsuits or

appeals and seeks to proceed in forma pauperis must present facts sufficient to demonstrate

“imminent danger” to circumvent application of the “three strikes” provision of 28 U.S.C.

§ 1915(g)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting the imminent

danger exception is available only “[w]hen a threat or prison condition is real and

proximate, and when the potential consequence is ‘serious physical injury.’”); Abdul-Akbar

v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the term ‘imminent,’ Congress

indicated that it wanted to include a safety valve for the ‘three strikes’ rule to prevent

impending harms, not those harms that had already occurred.”).

In light of the foregoing, this court concludes that Clervrain’s motion for leave to

proceed in forma pauperis should be denied and this case summarily dismissed without

prejudice for Clervrain’s failure to pay the requisite filing fee upon initiating this cause of

action. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (finding “the proper

procedure is for the district court to dismiss the complaint without prejudice when it denies

the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)”

because the prisoner “must pay the filing fee [and now applicable administrative fee] at the

time he initiates the suit.”) (emphasis in original); Vanderberg v. Donaldson, 259 F.3d

1321, 1324 (11th Cir. 2001) (same).

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

(1) Clervrain’s motion for leave to proceed in forma pauperis (Doc. # 2) be

DENIED; and

(2) This case be DISMISSED WITHOUT PREJUDICE for Clervrain’s failure to

pay the filing and administrative fees upon initiating the case.

It is further

ORDERED that the parties shall file any objections to this Recommendation by

March 31, 2021. A party must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made; frivolous, conclusive, or

general objections will not be considered. Failure to file written objections to the

Magistrate Judge’s findings and recommendations under 28 U.S.C. § 636(b)(1) shall bar a

party from a de novo determination by the District Court of legal and factual issues covered

in the Recommendation and waives the right of the party to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions accepted or adopted by

the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Lanning

Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661

F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 17th day of March, 2021.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE